The Tax Foundation defines a "jock tax" as the state and local tax burden that authorities levy against visiting professional athletes and other traveling business professionals. Some states include visiting musicians, lawyers, and even touring skateboarders in that category. Generally, a jock tax requires the visitor to pay income taxes in every state in which he or she earned income.

Two allocation methods

The current case before the Ohio Supreme Court (the Court) is Hillenmeyer v. City of Cleveland Board of Review. Hillenmeyer, a former linebacker for the Chicago Bears, argues that the City of Cleveland’s method for allocating income to non-resident professional athletes for tax purposes is contrary to statutory and case law and also violates both the Ohio and United States Constitutions.

Hillenmeyer contends Cleveland’s "games played" method results in an unfair apportionment of income. The "games played" method calculates an athlete’s tax liability based on the portion of games that the athlete's team plays in the jurisdiction relative to the total number of games that the team plays during the year.

Instead, Hillenmeyer asserts that Cleveland should follow the "duty days" method, which allocates a visiting athlete’s income based on the portion of the days that the athlete actually performs service in Cleveland relative to the number of days on which the athlete performs service for his employer during the year. In other words, Hillenmeyer says he should be taxed based on the portion of time that he—not his team—spent playing football in Cleveland.

The oral argument

The crux of Hillenmeyer’s legal position is that the "games played" scheme unlawfully taxes income earned for services performed outside the state of Ohio. During oral arguments, one issue that several justices pursued was whether the judiciary has the authority to tell the City of Cleveland how to tax people in the first place. Implicit in Hillenmeyer’s argument is that the judiciary can decide what constitutes a reasonable tax method; Hillenmeyer wants the court to conclude that the current system is unlawful and should be replaced by the "duty days" method.

On the other hand, the City of Cleveland argues that its taxing method is a local matter and the law only requires that it be “reasonably related to the income producing activity in the taxing jurisdiction.” Further, counsel for the city argued that Cleveland applies its method uniformly.

Implications

The amount in controversy for Hillenmeyer is de minimis; he only played one game per year in Cleveland for the three years (2004-2006) at issue. If he prevails, he would be entitled to a refund of about $6,000. Even so, as evident in a line of questioning from the Chief Justice, the principal at issue affects professional non-resident athletes in other sports and entertainers as well. Hillenmeyer’s counsel opined that when the entertainer earns wages as an employee over the course of a season, he or she is like an athlete. Under that scenario, the "duty days" method Hillenmeyer advocates should apply.

Though the outcome of the litigation remains uncertain, the fact that all other municipalities which have a local income tax, including Pittsburgh and Columbus, use the "duty days" method may bode well for Hillenmeyer. A decision is expected in several months.